Turning a Corner on Civil Rights

Sunday, November 23, 1997; Page C06

YOU KNOW a corner has been turned when major civil rights groups pony up more than $300,000 to help buy out a plaintiff and keep the Supreme Court from deciding an affirmative action case. That's what happened in the teacher firing case from Piscataway, N.J., the other day. The groups were afraid, with cause, not just that their side would lose but that the court would set them down in such a way as perhaps to shut down affirmative action almost entirely. They chose to pay at the office rather than run the risk of having to pay in court.

This never was a strong case or a totally compelling or comfortable one. People settle lawsuits all the time when, for one reason or another, it seems cost-beneficial to them to do so. So in a strictly technical sense, you could say the only difference here is that an interested third party put up most of the money. But this was a political event, not just an isolated legal maneuver. It was a tacit admission that there are certain places to which affirmative action cannot be carried. The counsel to the Piscataway Township Board of Education observed that the civil rights groups felt a ruling by the Supreme Court on this case could "gut the infrastructure of affirmative action across the country."

The Clinton administration had earlier done a telltale flip of its own in the case, in which the board, in deciding which of two comparably qualified teachers to keep during a layoff, had kept the one who was black and let go the one who was white pretty much entirely on the basis of race and a desire to maintain a racial mixture. First the administration (reversing a Bush administration position) had supported the board at the appeals court level. When that failed, it too tried to cut its losses -- limit them to the one case, or one circuit -- by keeping the Supreme Court from hearing the matter. When that, too, failed, it came up with a third position, which was that the board had been wrong, even though a degree of affirmative action in pursuit of such racial mixture was still okay.

The Supreme Court, of course, has been narrowing the circumstances in which affirmative action can be pursued as a variety of complicated and sometimes questionable cases appear. Some of these particular decisions have been flawed, but there is validity to the basic precept that the use of these devices -- racial and similar preferences -- needs to be carefully limited, lest they become a habit and replicate the very labeling and discrimination they are meant to eradicate. The court hasn't come to grips with this question -- to what extent a school board or university or just your garden variety private employer can take race and similar characteristics into account in hiring, admissions, promotion and the rest merely because it thinks such a policy will be helpful to it, and not to redress some past discrimination. Both sides in the debate want the next case to be one congenial to their interests. The civil rights groups decided this one, with its stark racial judgment, wasn't a winner for their side, and they were likely right.